1.
On June 7, 1994, the Inter-American Commission on Human Rights
(hereinafter the “Commission” or the “IACHR”) received a
petition lodged by the Nicaraguan Center for Human Rights [Centro
Nicaragüense de Derechos Humanos] (CENIDH), subsequently joined by
the Center for Justice and International Law (CEJIL) as co-petitioner
(hereinafter the “petitioners”), against the Republic of Nicaragua
(hereinafter the “State,” the “Nicaraguan State,” or “Nicaragua”),
in which they allege a judicial error in Supreme Court of Justice Ruling
Nº 44 on a petition for amparo. The petitioners contend
that as a consequence of the arbitrary actions of the administrative and
judicial authorities, 142 customs service workers were dismissed.[1]
These persons have 600 relatives who are financially dependent on them,
and more than half of them are children.

2.
According to the petition, on May 26, 1993, the customs service workers
went on strike after trying unsuccessfully to negotiate a number of
petitions with the Ministry of Labor. The petitions were for, inter
alia, nominal reclassification of the specific and common positions
in the General Directorate of Customs, job stability, 20% indexing of
wages pegged to devaluation, and others. The Ministry of Labor, on May
27, 1993, found that the workers' strike was illegal, charging that
Article 227 of the Labor Code did not extend the right to strike to
public or social service workers

3.
On June 7, 1993, the customs service workers filed a petition for amparo
with the Court of Appeals against the Ministry of Labor's
declaration of illegal strike, seeking a ruling from the Supreme Court
of Justice declaring the supremacy of the Constitution over the labor
laws. The Court of Appeals issued an interlocutory decision ordering the
custom service to suspend its dismissal of employees. Despite this, the
customs authorities still dismissed 142 employees, most of whom were
local labor leaders.

4.
The petitioners say that the Supreme Court of Justice issued Ruling Nº
44/94 on the petition for amparo one year after it was filed,
confirming the Ministry of Labor's resolution with respect to the
illegality of the strike. The petitioners also say that the justices
based their decision on events that took place one year before the
customs workers' strike. The justices argued that the workers had placed
obstacles on the runway, which had occurred in the case of the AERONICA
employees, not the customs workers.

5.
The petitioners also alleged excessive use of force by the police during
the customs workers’ strike on June 9 and 10, 1993.

6.
The petitioners claim that the State is responsible for violation of
their rights to humane treatment (Article 5), a fair trial (Article 8),
compensation (Article 10), freedom of association (Article 16), and
judicial protection (Article 25) enshrined in the American Convention on
Human Rights (hereinafter the “Convention”).

7.On March 12, 1997, during it 95th session, the Commission adopted
Report Nº 14/97, whereby it found Case Nº 11.381 admissible[2].
In the same report, the IACHR placed itself at the disposal of the
parties with a view to reaching a friendly settlement of the
matter. However, the State rejected any possibility of a friendly
settlement.

8.
After examining the case’s merits, the Commission adopted Report Nº
80/00 on October 4, 2000, during its 108th Session, in accordance with
Article 50 of the American Convention. It concluded that the State of
Nicaragua did violate, with respect to Milton García Fajardo,
Cristóbal Ruiz Lazo, Ramón Roa Parajón, Leonel Arguello Luna, César
Chavarría Vargas, Francisco Obregón García, Aníbal Reyes Pérez,
Mario Sánchez Paz, Frank Cortés, Arnoldo José Cardoza, Leonardo
Solis, René Varela, and Orlando Vilchez Florez, the right to humane
treatment set forth in Article 5 of the American Convention on Human
Rights. It also concluded that with respect to Milton García Fajardo
and the 141 workers involved in the complaint, the State violated the
right to a fair trial, the right to judicial protection, and the
economic, social, and cultural rights protected by Articles 8, 25, and
26 of the same international instrument, in connection with the general
obligation of respecting and ensuring those rights set forth in Article
1(1) thereof. The Commission recommended that the State of Nicaragua
conduct a complete, impartial, and effective investigation to determine
the criminal responsibility of all the perpetrators of the injuries
inflicted on the persons named in the previous paragraph and to punish
the guilty in accordance with Nicaraguan law. It also recommended that
the State take the steps necessary to ensure that the 142 customs
workers who lodged this complaint receive proper and timely compensation
for the aforesaid violations.

9.
The Commission transmitted Report Nº 80/00 to the State of Nicaragua on
October 24, 2000, granting it a period of two months to take the steps
necessary to comply with the recommendations, as stipulated in Article
50. As of March 11, 2001, the case had been neither resolved nor
submitted by the Commission or the State for judgment by the Court, and
so the Commission adopted Report Nº 56/01, reiterating the conclusions
and recommendations contained in Report Nº 80/00, in accordance with
Article 51(1) and (2) of the American Convention, and granting the State
a period of one month to comply.

10.
The State replied on May 16, 2001, repeating the position set forth in
its communication of March 7, 2001. The petitioners submitted their
reply on July 6, 2001, indicating that the State had not implemented the
Commission’s recommendations. Based on the information that was
furnished, the Commission agreed to publish this report in accordance
with the terms of Article 51(3) of the American Convention.

II.
PROCESSING BEFORE THE COMMISSION

11.
On June 7, 1994, the Commission received the petition relating to the
142 customs workers of Nicaragua. The petition was amended on September
13 of the same year to include the names of each of those persons. On
September 21, 1994, the Commission entered the case as Nº 11.381, and
transmitted the pertinent parts of the petition to the State, asking it
to furnish information about the material events of that petition within
a term of ninety days. It further asked the State to provide any
evidence that would enable it to determine whether all the remedies
under domestic law had been exhausted in this case.

12.
The State replied on October 27, 1994, and requested the Commission to
find case 11.381 inadmissible in accordance with Article 47(d) of the
Convention and Article 39(b) of the Commission's Regulations, inasmuch
as it was pending in another
international proceeding for settlement. The State further stated
that the Trade Union Freedom Committee of the International Labour
Organization (ILO) had taken up the matter as Case Nº 1719, on June 6,
1993, pursuant to a claim originally filed by the Sandinista Workers’
Union (Central Sandinista de Trabajadores) and the National Union
of Employees (Unión Nacional de Trabajadores). The State’s
reply was transmitted to the petitioner on November 7, 1994. On December
21, 1994, the petitioners submitted their comments, which were forwarded
to the State on February 14, 1995.

13.
On March 24, 1995, the petitioners furnished additional information and
reiterated the terms of their petition. On March 30, 1995, the
State of Nicaragua submitted its reply to the observations made by the
petitioners. On April 4, 1995, the Commission transferred the
contents of the reply prepared by the State of Nicaragua to the
petitioners. On May 30, 1995, the Commission transmitted to the State of
Nicaragua the additional information provided by the petitioners.

14.
The petitioners submitted their observations in a note dated June 8,
1995, in which they requested the Commission to settle the conflict of
competencies between the ILO Trade Union Freedom Committee and the
Inter-American Commission. On July 12, 1995, the Commission
transmitted to the State the contents of the additional information
furnished by the petitioners. In June and July 1995, the
Commission received many communications from the petitioners, in which
they refer to their financial situations. On July 13, 1995, the
Commission transmitted to the State the pertinent parts of the
additional information furnished by the petitioners. On October 3,
1995, the State provided additional information which referred to the
recommendations made to the State by the Trade Union Freedom Committee
in connection with petition Nº 1719. On October 12, 1995, the
Commission transmitted to the petitioners the content of the information
provided by the State. On November 2, 1995, the Commission
forwarded to the State the additional information provided by the
petitioners.

15.
On January 23, 1996, the Commission sent to the State the observations
made by the petitioners, in which they reject the argument of the State
that the matter is pending in another international proceeding for
settlement and reiterate that the petition lodged with the ILO concerned
a violation of labor rights that occurred prior to issue of Ruling Nº
44, whereas the petition presented to the Commission, as they have been
explaining in their many communications, deals with the error contained
in the aforementioned ruling. During the months of March and April
1996, the Commission continued receiving many communications from the
workers describing their financial situation since they were dismissed.
Those communications were forwarded to the State in due course.

16.
On March 12, 1997, during its 95th session, the Commission adopted
Report Nº 14/97, admitting Case Nº 11.381 concerning Milton García
Fajardo and others. In that report the IACHR analyzed the
admissibility requirements set forth in Article 46 of the Convention and
in Articles 32 and 38 of the IACHR Regulations. With respect to
exhaustion of domestic remedies, the Commission found that the
petitioners had proven that they had availed themselves of all the
remedies under domestic law provided by the legislation of
Nicaragua. In reference to the State’s objection asserting
duplication of international proceedings, the Commission found that it
was competent to take up the case based on the following:

The
Trade Union Freedom Committee reviewed the right to strike, as an
essential component of trade union freedom, and condemned the
discharge of trade union leaders for this reason, but at no time did
it refer to the arbitrary actions that were committed in the court
proceedings involved in this case such as unjustified delay and the
judicial error on which ruling No. 44-94 of the Nicaraguan Supreme
Court of Justice was based.

17.
In the same Report 14/97 the Commission placed itself at the disposal of
the parties with a view to reaching a friendly settlement of the matter
on the basis of respect for the human rights recognized in the
Convention. The report was forwarded to the State on May 19,
1997. On July 25, 1997, the State replied to the IACHR's Report on
Admissibility, requesting that it order the record closed. The
State reiterated its position on the illegality of the strike and said
that no violation of constitutional principles existed. The State
further informed the IACHR that the workers committed criminal acts
during the strike. On July 31, 1997, this reply was transmitted to
the petitioners for comment.

18.
On August 14, 1997, the petitioners requested the Commission for a
hearing during the 94th regular session of the IACHR. On October
2, 1997 the petitioners reiterated the terms of their complaint and
requested the IACHR to order them to receive just compensation. On
October 6, 1997 the Commission transmitted the petitioners’
communication to the State of Nicaragua. On that same date the
petitioners sent the Commission additional information regarding the
excessive force used by the National Police. On October 8, 1997,
during its 97th regular session, the Commission held a hearing attended
by the parties, wherein the possibility was put forward of initiating a
friendly settlement procedure.

19.
On February 23, 1998, the petitioners sent additional information to the
Commission refuting the State's accusations. On July 10, 1998, the
State requested the Commission for a 30-day extension in order to reply
to the petitioners observations. In a note dated July 16, the
Commission granted the State an additional period of 30 days. On
August 17, 1998, the State sent its observations to the IACHR and said
that the workers were accorded full judicial guarantees and pursued all
the remedies provided by Nicaraguan law. The above mentioned
communication was sent to the petitioners on August 26, 1998.

20.
The IACHR held a hearing of the parties during its 100th regular session
on October 7, 1998. At that hearing the Commission offered its
good offices for reaching a friendly settlement. The State made a
compromise to reply to the petitioners' proposed offer within a month
following the latter’s' communication thereof. On October 13,
1998, the Commission received a proposed offer from the petitioners
designed to reach a friendly settlement based on two basic elements:
redress and compensation. The communication was forwarded to the
State that same day. In the absence of a reply from the State, the
petitioners requested that a report be prepared under Article 50 of the
Convention. On December 17, 1998, the IACHR received the State's
reply in which the latter rejected any negotiation. The
communication was transmitted to the petitioners on December 30,
1998.

21.
On November 26, 1999, the State sent additional information on the
status of the judicial deposits, saying that 81 workers had withdrawn
their social services benefits from the total of 121 judicial deposits,
and those that had not could do so through the various ordinary
tribunals. On December 10, 1999, this communication was forwarded
to the petitioners. On December 3, 1999 during a working visit by
the Commission to Nicaragua, the IACHR, at the request of the
petitioners, again raised the possibility of coming to an arrangement in
the framework of a friendly settlement. That offer was rejected by the
State.

22.
After examining the substance of the case, the Commission adopted Report
Nº 80/00, on October 4, 2000, during its 108th session, in accordance
with Article 50 of the American Convention. The Commission
transmitted Report Nº 80/00 to the State of Nicaragua on October 24,
2000, and granted it a period of two months to take the steps necessary
to comply with the recommendations, as stipulated in Article 50.

23.
On December 14, 2000, the State requested an extension to the deadline
allowed for its reply. The Commission granted it a period of ten
days. Subsequently, on January 23, 2001, the Nicaraguan State
requested a 45-day extension for it to present the results of the
investigations conducted in connection with case Nº 11.381 and its
comments on Confidential Report Nº 80/00, in the understanding that
granting it the extension it requested would suspend application of the
deadlines referred to in Article 51 of the Convention, which were to
fall due on January 24, 2001. In that context, the Commission agreed to
grant the State the extension it requested.

24.
In a letter received on March 7, 2001, the State presented its comments,
refuting Report Nº 80/00 and concluding the following:

Based
on the analysis and conclusions of this report, the State of Nicaragua
reiterates its willingness to resolve this case by proposing to pay only
the petitioners who did not withdraw their awards and agreeing to
maintain the value of their severance payments up to the present moment.

25.
As of March 11, 2001, the case had been neither resolved nor submitted
by the Commission or the State for judgment by the Court, and so the
Commission adopted Report Nº 56/01, reiterating the conclusions and
recommendations contained in Report
Nº 80/00, in accordance with Article 51(1) and (2) of the American
Convention, and granting the State a period of one month to comply. The
State replied on May 16, 2001, repeating the position set forth in its
communication of March 7, 2001. The petitioners submitted their
reply on July 6, 2001, indicating that the State had not implemented the
Commission’s recommendations. Based on the information that was
furnished, the Commission agreed to publish this report in accordance
with the terms of Article 51(3) of the American Convention.

III.
POSITIONS OF THE PARTIES

A.
The Petitioners

26.
The petitioners claim that the employees of the Nicaraguan Customs
Service held a strike on May 26, 1993, which was found illegal by the
Ministry of Labor and 142 workers were dismissed from their jobs, even
though several court rulings issued after the strike ordered that they
be reinstated in their jobs.[3]

27.
The petitioners say that on June 7, 1993, the customs service workers
filed a petition for amparo before the Appeals Court for Civil
and Labor Matters against the Ministry of Labor's declaration of illegal
strike of May 27, 1993, requesting the Supreme Court of Justice to issue
a ruling declaring the supremacy of the Constitution over the labor
laws.

28.
The petitioners say that on June 23, 1993, the Court of Appeals issued a
decision suspending the effects of the Ministry of Labor's resolution.
The implication of this was that the workers should be reinstated in
their positions, and that all the dismissals that the custom service had
initiated arbitrarily should be suspended. Despite this, the customs
authorities still dismissed 142 employees, most of whom were local labor
leaders. In addition, the Director General of Labor issued a notice on
July 7, 1993, ordering that the dismissed workers be rehired, along with
the employees who had been arbitrarily prosecuted for crimes. Later, the
Supreme Court of Justice itself issued an official notice ordering
compliance with the decision of the Court of Appeals. None of these
judicial decisions was carried out.

29.
The petitioners say that the Amparo Law provides a term of 45 days
in which to issue a decision on such an appeal. However, Supreme
Court Ruling Nº 44/94 was issued one year after the appeal was filed,
that is, on June 12, 1994, upholding the Ministry of Labor's resolution
with respect to the illegality of the strike. The petitioners say that
the justices based their decision on events that took place in February
1992, in other words, one year before the customs workers' strike. The
justices alleged that the workers had placed obstacles on the runway, a
charge imputable to the AERONICA employees but not the customs workers.

30.
The petitioners claim that the judicial deposits mentioned by the State
were used as a means to advise the workers of their dismissal, which
contradicted their nature. Moreover, those judicial deposits did not
include indemnity for unjustified dismissal or any other
compensation. The judicial deposits only covered the salaries due.
The petitioners say that the withdrawal of these judicial deposits by
some customs workers in no way signifies agreement with their
unjustified dismissal but, rather, has to do with a matter of financial
necessity.

31.
The petitioners claim that they were victims of excessive use of force
by the security forces. On June 9 and 10, 1993, customs service
workers were beaten up by the National Police, who used tear gas, clubs
and firearms against them. The petitioners say that 50 workers were
arrested and 30 brought up on criminal charges. These persons were later
cleared of the charges against them by the justice system.

32.
The petitioners contend that as a consequence of the judicial error and
the arbitrary actions of the administrative authorities, 142 customs
service workers were dismissed. These persons have 600 relatives who are
financially dependent on them, and more than half of them are children.
Based on the foregoing, the petitioners claim that the State violated
their rights to humane treatment (Article 5), a fair trial (Article 8),
compensation (Article 10), freedom of association (Article 16), and
judicial protection (Article 25) contained in the American Convention.

B.
The State

33.
The State has argued in its replies and comments on Case 11.381 that the
Commission should refrain from taking up the case on grounds of: i)
duplication of international proceedings, inasmuch as a prior petition
was submitted to the ILO Trade Union Freedom Committee; and ii) failure
to exhaust domestic remedies.

34.
In addition, the State claims that the customs service workers committed
criminal acts during the strike. It says that the strike was found
illegal and that most of the workers had been reinstated in their jobs.

35.
The State says that the workers’ social benefits were placed in
judicial deposit and that 80% of these deposits were withdrawn by the
customs service workers.

36.
Finally, the State rejected the offer of a friendly settlement made
during the two hearings of the parties held by the Commission.

IV.
ANALYSIS

A.
Right to humane treatment (Article 5 of the Convention)

37.
Article 5 of the Convention provides that, “Every person has the right
to have his physical, mental, and moral integrity respected.”
This individual guarantee is also protected under Nicaraguan domestic
law. Article 36 of the Constitution [of Nicaragua] provides that,
“Every person has the right to have his physical, mental, and moral
integrity respected. Nobody shall be subjected to torture, or to
cruel, inhuman or degrading procedures, punishment or treatment.
Violation of this right constitutes a criminal offense and shall be
punished by law.”

38.
The information presented by the petitioners mentions that the
Government, through the Ministry of Labor, issued a resolution declaring
the customs workers’ strike illegal and ordered the National Police to
suppress the strike by means of force on June 9 and 10, 1993. As a
consequence thereof, many workers were severely beaten and others were
arbitrarily arrested.

39.
The victims’ representatives provided information on the injuries
sustained by some of the workers as a result of the excessive violence
used by police officers, who even resorted to harassment and raids on
their homes.[4]
The petitioners also mention that the excessive and disproportionate use
of force by the police affected women and children.

40.
According to the list provided by the petitioners on June 9, 1993, the
following workers were beaten up at the Central Customs Office by the
police: Leonel Argüello Luna, César Chavarría Vargas, Francisco
Obregón García, and Aníbal Reyes Pérez.[5]
Also injured were the journalist from El Nuevo Diario, Mario
Sánchez Paz, photographer Frank Cortés, and Arnoldo José Cardoza.[6]

41.
On June 10, 1993, the following persons were injured as a result of the
repressive measures adopted by police officers at Sapoa in the
Department of Rivas: Cristóbal Ruiz, Ramón Roa Parajón, Leonardo
Solís, René Varela and Orlando Vilchez Florez.[7]

42.
The State holds that the Customs Service workers committed acts of
vandalism and violence during the strike and furnishes a list of the
offenses allegedly committed. With that list it seeks to undermine
the legitimacy of the instant petition by adducing criminal acts that
are unproven, given that no conviction has been issued against the
Customs Service workers. A contrario sensu, the prosecution
against the workers was dismissed and the charges quashed, as the
annexes attached to this record show.[8]
Furthermore, the Commission does not know the origin of the list
presented by the State, inasmuch as no mention is made of the judicial
or police proceeding that yielded said information.[9]

43.
The judgment delivered by the Military Tribunal of First Instance on
September 13, 1993 supports the position of the petitioners regarding
the excessive use of force by the police and contradicts the information
provided by the State that the workers committed acts of violence, given
that said judgment found Carlos José Cerda Sánchez and Erik Salazar
Vargas guilty of the crime of abuse of position. Subsequently, on
April 12, 1994, the Office of the Military Judge Advocate of the Sandinista
Armed Forces convicted Carlos José Cerda Sánchez of the crime of abuse
of authority to the detriment of the customs employees Cristóbal Ruiz
Lazo, Ramón Roa Parajón, and Milton García Fajardo.[10]

44.
The press reports furnished by the petitioners provide evidence of the
violence used by the security forces. Thus, for instance, El
Nuevo Diario, in its edition of May 27, 1993, published the
following: "The presence of armed forces troops prompted acts of
violence at the Peñas Blancas Customs Office on the border with Costa
Rica, where yesterday police beat up the General Secretary of the Union,
Milton García, who was admitted to hospital with head
injuries." On May 30, 1993, the same newspaper published:
"Repression of Customs Workers Intensifies: The State stepped up
its repression of striking workers, with the result that combined forces
of army troops and police used an excessive level of violence to
evict striking workers from the Peñas Blancas and El Guasaule customs
offices".[11]

45.
By means of a letter from the National Police of Nueva Segovia, the
petitioners show that it was a matter of record that "the workers
took part in a sit-down strike in which there were no acts of
violence." The petitioners show that the customs workers’
strike was peaceful,[12]
whereas the attitude of the National Police was not, which constitutes a
violation of Article 5 of the Convention, in particular due to the
disproportionate and excessive use of force, in clear violation of
international standards.

46.
The disproportionate use of force on the part of the security forces
caused violations of the physical integrity of the forenamed
persons. The existence of arbitrary acts, such as mistreatment of
persons, use of firearms, and inflicting serious injuries on the
demonstrators was clearly shown. The above is demonstrated by the
fact that one agent of the security forces was convicted of abuse of
authority. This shows that the workers were victims of violence
used by the security forces,[13]
on the days that led up to the strike, and did not, as the State
baselessly accuses them, commit acts of violence, proof of which is that
they were all acquitted.[14]
The Commission finds that the facts stated constitute a violation of the
right to humane treatment on the part of the State, in accordance with
Article 5 of the American Convention.

B.
Right to a fair trial and to judicial protection (Articles 8(1) and 25
of the Convention)

a.Right to a fair trial

47.
Article 8 of the Convention provides, “Every person has the right to a
hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established
by law, in the substantiation of any accusation of a criminal nature
made against him or for the determination of his rights and obligations
of a civil, labor, fiscal, or any other nature.” Article 34 of
the Nicaraguan Constitution also guarantees the right to a fair trial.

48.
The information furnished by the petitioners states that the procedure
for declaring a legal strike starts with an administrative
proceeding. The customs workers presented a list of petitions in
which they also requested the creation of a Reconciliation Board or
appointment of a strike judge by the Departmental Inspector of the
Ministry of Labor (Article 302 et seq. of the Labor Code).
Such inspector failed to comply with the established procedure.
The talks between the union and the parties ended without an agreement
and the General Directorate of Labor issued a resolution declaring the
strike illegal.

49.
On June 23, 1993 the Court of Appeals issued a decision suspending the
effects of the administrative resolution
while the Supreme Court of Justice was examining the petition for amparo
that the workers had filed.

50.
Ruling Nº 44-94 of the Supreme Court of Justice was issued on June 2,
1994, in other words, one year after the petition was presented. There
was no reasonable cause that warranted a delay of 10 months in reaching
such decision.

b.
Unwarranted delay in rendering a judgment

51.
Article 8 of the American Convention mentions the judicial guarantees
whose compliance is required in all proceedings for determination of
rights and obligations. Clause 1 provides that compliance is
obligatory within a reasonable time established in order to avoid
unnecessary delays that may lead to a deprivation or denial of justice.

52.
In the instant case, on June 7, 1993, the customs service workers filed
a petition for amparo with the Appeals Court for Civil and Labor
Matters of the Third Region against the Director General of Labor,
charging violation of Articles 83 and 88 of the Constitution. The
Supreme Court of Justice of Nicaragua finally issued a ruling on June 2,
1994, and declared the petition unfounded.

53.
Under Nicaraguan law, the Supreme Court was required to issue a decision
on the petition for amparo within 45 days (Article 47 Law
on Amparo Nº 49). However, it took a year to do so, which demonstrates
clear negligence on its part, in breach of Article 8 of the Pact of San
José. Regarding this, the Supreme Court failed to comply not only
with this procedural deadline prescribed by domestic law, but also with
international standards developed for determining a reasonable time, by
issuing a ruling that was vital to the job and financial security of a
large number of workers and to the effectiveness of other human rights
long after the respective petition in question was filed.

54.
The jurisprudence of the Inter-American Court has established three
points that must be taken into account in determining a reasonable
time: a) the complexity of the matter; b) the judicial activity of
the interested party; and c) the behavior of the judicial authorities.[15]

55.
With respect to the complexity of the matter, the Commission finds that
the petition for amparo sought purely to obtain a ruling from the
Supreme Court on a point of law: the supremacy of the Constitution over
the inferior law insofar as the right to strike is concerned. The
IACHR has noted that the judicial procedure followed in the case of this
petition did not involve numerous steps or requests; on the contrary,
the process was very straightforward, given that it consisted of
presentation of the petition for amparo, followed by the
procedure conducted before the Court of Appeals; the presentation of the
opinion of the Office of the State’s Attorney for Civil and Labor
Matters; and the reply of the Director General of Labor. Accordingly, a
large number of measures were not required, in view of the nature of the
petition and the little activity with respect to discovery.

56.
As to the judicial activity of the interested party, the petitioners
filed a petition for amparo and always presented additional
information whenever it was necessary. Both they and the
government authorities against whom the petition was filed met the
deadlines and terms provided for presentation of their respective
arguments. However, as a result of the delay of the Supreme Court
of Justice in rendering a judgment, the petitioners repeatedly requested
that it issue a decision. The Commission finds that the delay in
rendering a judgment was not due either to negligence or lack of
interest of the parties but, rather, to the inactivity and failure to
meet deadlines of the Supreme Court of Justice itself.

57.
There is nothing to suggest to the Commission that the Supreme Court of
Justice needed longer than the prescribed term of 45 days, or that is
was compelled by the complexity of the matter or the activity of the
parties to delay its decision. Furthermore, the Commission wishes
to mention that this is not the first time that this judicial organ has
committed such a violation, inasmuch as, previously, in the Genie Lacayo
Case, the Inter-American Court found that the actions of the Supreme
Court of Justice of Nicaragua were in breach of Article 8(1) of the
Convention:

With
reference to the third point, that is, the behavior of the Nicaraguan
judicial authorities, this Court finds that there were no excessive
delays at the various stages of the proceedings, with the exception of
the phase which is yet to be settled (supra 71), that is, the
application for judicial review before the Supreme Court of Justice
filed by the accusing party on August 29, 1994, admitted by that
Tribunal on August 31 and which, notwithstanding the various requests
from the parties, has still not been disposed of. Even considering the
complexity of the case, as well as the excuses, impediments and
substitution of judges of the Supreme Court of Justice, the two years
that have elapsed since the application for judicial review was admitted
is not reasonable; this Tribunal therefore deems it to violate Article
8(1) of the Convention.[16]

58.
The Commission finds no justification whatsoever why this high tribunal
should have taken longer than the prescribed term to deliver a ruling on
a petition for amparo, which, by its very nature, entails a
prompt procedure. However, what occurred was straightforward lack
of activity by the court, which left the customs employees in a
situation of legal defenselessness during a year and constituted a
violation of Article 8(1) of the American Convention.

c.
Right to judicial protection (Article 25 of the Convention)

59.
Article 25(1) of the Convention guarantees everyone the "right to
simple and prompt recourse, or any other effective recourse, to a
competent court or tribunal for protection against acts that violate his
fundamental rights recognized by the constitution or laws of the state
concerned or by this Convention, even though such violation may have
been committed by persons acting in the course of their official duties."

60.
The Inter-American Court has interpreted Article 25(1) of the Convention
as “a general provision that gives expression to the procedural
institution known as “amparo," which is a simple and
prompt remedy designed for the protection of all of the rights
recognized by the constitutions and laws of the States Parties and by
the Convention”.[17]

61.
Article 45 of the Constitution of Nicaragua protects the right to
judicial recourse, and provides, "Any person whose constitutional
rights may have been violated, or are in danger of being so, may claim a
remedy of exhibición personal a form of habeas corpus or of amparo,
as the case may be, in accordance with the Amparo
Law". For its part, Article 188 of that body of laws provides
the remedy of amparo "against any provision, measure, or
decision and, in general, against any act or omission by any official,
authority, or agent thereof that violates or attempts to violate the
rights and guarantees enshrined in the Constitution.”

62.
Furthermore, Law Nº 49 (the Amparo Law) sets forth a series of
principles that the Nicaraguan justice administration is required to
observe when it examines a petition for amparo. Thus,
Article 5 of that law provides that, "The Courts of Justice (...)
shall: 1.) Oversee all proceedings connected with the petition, prevent
their interruption and enforce the principle of procedural economy;
2) Prevent and punish all acts that are contrary to the principles of
fairness and good faith, which must be observed during the proceedings;
3) Enforce the principles of equality, openness and promptness of the
proceedings; 4) Adopt all the necessary steps to ensure
compliance with their decisions " (emphasis added).

63.
Under Law Nº 49 (the Amparo Law) of 1988, a petition for amparo
is first filed with a court of appeals which decides
admissibility. If found admissible the petition is then taken up
by the Supreme Court of Justice, which must issue a decision on the
merits.

64.
Having established the existence of the institution of amparo
under Nicaraguan law and bearing in mind the nature of the instant case,
which originated in a labor dispute, for which the domestic laws provide
exhaustion of administrative, and then judicial, remedies, the
Commission proceeds to examine the remedies sought by petitioners.

65.
On March 8, 1993, the customs service workers submitted a list of
petitions to the Departmental office of Inspection of the Ministry of
Labor in Managua, and initiated, at the same time, a round of
negotiations between the Executive Board of the Trade Union and the
authorities of the Ministry of Labor.

66.
Since the negotiations did not reach an agreement, an application to
appoint a strike judge was submitted to the Office of the Director of
Reconciliation of the Ministry of Labor for consideration. This was done
in conformity with the procedure set forth in Article 305 of the Labor
Code. No strike judge was ever appointed, and no board of reconciliation
was ever designated. These are the authorities expressly empowered by
the very Labor Code to declare whether or not a strike is legal. As a
result, even this phase of the administrative procedure failed to comply
with the provisions of the Labor Code.

67.
Since the Ministry of Labor did not rule in good time, which leads to
the assumption of an infringement of a right which exists in all bodies
of law, whereby a private person is entitled to a prompt reply from an
administrative authority, since otherwise there would be a denial of
justice, the petitioners decided to avail themselves of the
constitutional precept that recognizes the right to strike (Article 83
of the Constitution of Nicaragua). After this, the Ministry of Labor
declared the strike illegal in a resolution dated May 27, 1993, on the
grounds that public sector workers are not thus entitled, in accordance
with the provisions of the Labor Code.

68. Disagreeing with the contents of the
resolution which declared the strike illegal, the workers sought an
administrative remedy known as "recourse to appeal" for the
purpose of having the executive reconsider its decision. This appeal
process is provided for in Article 68 of the regulations of the Labor
Code from which the following conclusion can be drawn:

The
right of appeal follows resolutions issued by the authorities of the
Ministry of Labor. This recourse must be filed within 24 hours, plus the
amount of time required to make notification of the pertinent
resolution. After the remedy is filed, the authority that issued the
resolution shall immediately bring the activities to the attention of a
senior official so that the latter may, within no more than five working
days, not extendable, confirm, amend or void the resolution appealed....

69.
On June 4, 1993, the Director General of Labor decided to uphold each
and every part of the resolution issued by the Office of the Inspector
General of Labor, on May 27, 1993, and, consequently, declared the
strike started by the unions of the General Directorate of Customs to be
illegal.

70.
Having exhausted all available administrative remedies, the petitioners
resorted to the courts where they filed a petition for amparo.

71.
The petitioners filed a petition for amparo on June 7, 1993, with
the Appeals Court for Civil and Labor Matters of the Third Region in
accordance with Article 31 of the Amparo Law.[18]

72.
This Appeals Court issued a decision on June 23, 1993, suspending the
effects of the resolution of the Ministry of Labor and ordered that the
workers be reinstated in their jobs. Nevertheless, this ruling was not
respected by the authorities, which continued to dismiss workers. This
led the employees to request the Supreme Court of Justice, on two
occasions, August 25, 1993 and September 7, 1993, to issue an executive
order for the purpose of enforcing the ruling issued by the Appeals
Court. On September 9, 1993, the Supreme Court issued an order requiring
compliance with the interlocutory suspension ruling issued by the
Appeals Court. This decision was
also ignored.

73.
The State violated Article 25(2)(c) of the American Convention by
ignoring the precautionary measures ordered by the Appeals Court for
Civil and Labor Matters of the Third Region, which required the suspension of all dismissals while the petition for amparo was
being heard.

74.
Article 25 establishes the obligation for the states to make available
to private citizens a simple and prompt recourse designed to protect
them against acts that violate their fundamental rights. In
paragraph 2(c) of that Article, the Convention binds the states parties
"to ensure that the competent authorities shall enforce such
remedies when granted."

75.
In his book “El juicio de Amparo” [“The Amparo
Proceeding”], Professor Ignacio Burgoa says that suspension of the
unconstitutional act is the crux of any petition for amparo:
Suspension of the act alleged by the complaint to be unconstitutional
and which gives rise to the suit is a crucial aspect of the institution
of Amparo, insofar as it guarantees the claimant the possibility
of having his right respected once the suit has been admitted, either by
preventing violation of that right through continuation of the injury,
or preventing harm to and deterioration of the protected property.
The importance of this institution of suspension lies, therefore, in the
fact that it guarantees the existence of the legally protected interest
or the conclusion of the proceeding.[19]

76.
In the case sub-lite the suspension was ordered of the act cited
in the claim. The Customs Authority never obeyed the various orders
issued by the Court of Appeals of Managua, which sought to halt the
dismissals until a decision was forthcoming on the petition for amparo
filed by the workers.

77.
The following court decisions were ignored:

i)
The decision of the Court of Appeals of Managua of June 23, 1993, which
ordered suspension of dismissals of employees upon notice of that
decision being served to the General Directorate of Labor, in other
words, as of 9:45 a.m. on June 24, 1993. Despite that notice, the
Customs authorities continued with the dismissals and to make the
respective judicial deposits with the civil and labor courts.

ii)
Following the Government’s failure to comply, the customs workers
requested the Court of Appeals to issue a clarifying decision on its
ruling of June 23. On July 1, 1993, that court issued a clarifying
decision, which stated, "what is suspended are the effects of that
administrative act as of notification of the decision being clarified;
concretely it is suspended as of a quarter to ten on the morning of the
twenty-fourth of June, nineteen hundred and ninety-three, when the first
notice was served." That decision, which supposedly clarified the
position of the Court of Appeals was also ignored.

iii)
In a notice of July 7, 1993, the Director General of Labor ordered the
reinstatement both of the dismissed workers and of the workers who had
been arbitrarily prosecuted on criminal charges. That order was
not obeyed.

iv)
By court order of September 9, 1993, the Supreme Court of Justice
ordered the customs authority to comply with the interlocutory
suspension ruling issued by the Court of Appeals. That request was
not carried out either.

78.
Proof of the State’s contempt are the judicial deposits on behalf of
the customs workers, which were made after 9:45 a.m. on June 24, 1993,
in open disobedience of the decision of the Court of Appeals.
These deposits were used as means to finalize the mass dismissals.
The foregoing demonstrates the State’s attitude of flagrant disrespect
of the decisions of the courts, in spite of their clarification and
reiterated demands for their execution.

79.
In contradiction of the judicial deposit of the workers’ severance
pay, the General Directorate of Customs issued a press release on June
28, 1993 in which it stated that it was complying with the decision of
the Court of Appeals of Managua and announced the reinstatement of the
striking workers; it did not, however, annul the judicial deposit of
their social services benefits.

80.
The petitioners say that this incongruity was designed to conceal the
failure to comply with the judicial decision. Indeed, the Supreme
Court of Justice again requested the General Directorate of Customs to
comply with the court’s decision on September 9, 1993.

81.
It has been demonstrated that the decisions issued by the Court of
Appeal ordering precautionary measures as a remedy to prevent future
violations of the customs workers’ rights proved ineffective and
illusory. In that connection, the Inter-American Court has found
that for such a remedy to exist, “… it is not sufficient that it be
provided for by the Constitution or by law or that it be formally
recognized, but rather it must be truly effective in establishing
whether there has been a violation of human rights and in providing
redress. A remedy which proves illusory because of the general
conditions prevailing in the country, or even in the particular
circumstances of a given case, cannot be considered effective. That
could be the case, for example, when practice has shown its
ineffectiveness: when the Judicial Power lacks the necessary
independence to render impartial decisions or the means to carry out its
judgments; or in any other situation that constitutes a denial of
justice, as when there is an unjustified delay in the decision..."[20]

82.
In the instant case, the remedies did indeed prove illusory and their
uselessness was demonstrated in practice when the State refused to
comply with the judicial decisions ordering precautionary
measures. Despite the existence of those decisions, which sought
to avert further violations, the customs workers were dismissed.

83.
Furthermore, the ineffectiveness of the remedy of amparo under
Nicaraguan law was also demonstrated by the fact that the Supreme Court
issued its decision a year after the remedy was sought. The
foregoing indicates the lack of a prompt and effective recourse to
respond to the claims of the customs workers. The delay of the Supreme
Court of Justice to pronounce judgment on the petition for amparo also
indicates the ineffectiveness of the courts in protecting the human
rights enshrined in the Constitution and in the American
Convention. Indeed, according to Article 47 of the Amparo
Law, "The Supreme Court of Justice shall in all cases deliver a
final judgment within forty-five days after taking up the
petition." It is plain that the Supreme Court of Justice
issued its decision 10 months late, which is beyond any reasonable term,
thereby leaving the customs workers in an unprotected state.

84.
The ineffectiveness of the courts was also demonstrated in Ruling Nº
44, when the Supreme Court issued a completely unreasoned decision
against the petition, in open contravention of Article 45 of the Amparo
Law, which expressly states that the judgment shall be reasoned.[21]
The Inter-American Court has found that, “the mere fact that a
domestic remedy does not produce a result favorable to the petitioner
does not in and of itself demonstrate the inexistence or exhaustion of
all effective domestic remedies.”[22]
It is a different matter, however, “when it is shown that remedies are
denied for trivial reasons or without an examination of the merits.”[23]

85.
In the instant case, the customs workers appealed to the judicial organ
provided for by the law in order to seek a judicial remedy that would
protect against acts that allegedly violated their constitutional
rights. The foregoing shows, therefore, that the petitioner had free
access to such a remedy. The Commission nevertheless understands
that the right to effective judicial protection provided for in Article
25 is not exhausted by free access to judicial recourse. The intervening
body must reach a reasoned conclusion on the claim’s merits,
establishing the appropriateness or inappropriateness of the legal claim
that, precisely, gives rise to the judicial recourse.[24]
Moreover, that final decision is the basis for and origin of the right
to legal recourse recognized by the American Convention in Article 25,
which is also covered by indispensable individual guarantees and state
obligations.

86.
In the case of the customs workers, the Supreme Court dismissed the
judicial remedy, finding it inadmissible without stating the grounds for
its judgment, thereby avoiding issuing a decision on the rights of the
petitioners and examining the merits of their claim.

87.
The Commission considers that the logic of every judicial
remedy--including that of Article 25--indicates that the deciding body
must specifically establish the truth or error of the claimant’s
allegation. The claimant resorts to the judicial body alleging the truth
of a violation of his rights, and the body in question, after a
proceeding involving evidence and discussion of the allegation, must
decide whether the claim is valid or unfounded. Otherwise the judicial
remedy would become inconclusive.[25]To determine the rights involves making a determination of the
facts and the alleged right--with legal force--that will bear on and
deal with a specific object. This object is the claimant’s specific
claim.[26]

88.
In this specific case the customs service workers filed a petition for amparo,
in order to obtain a ruling from the Supreme Court of Justice declaring
the supremacy of the Nicaraguan Constitution (Article 83 of which
recognizes the right to strike) over inferior laws, such as the Labor
Code, which establishes limits on said right, particularly in the case
of public sector employees, who, under the Labor Code, do not have
recourse to the right to strike. However, in Ruling Nº 44 the Supreme
Court omitted to pronounce judgment in that respect; what it did was to
declare the strike illegal based, as explained, on events not connected
with the case,[27]
consequently making the remedy ineffective and leaving the victims
unprotected.

89.
Justice Alba Luz Ramos Venegas, in her dissenting vote in Ruling Nº 44,
said that the petition for amparo ought to have been admitted
based on the following:

Although
no fundamental right is limitless, a secondary law that governs it may
not impinge upon the essence of that right. Article 83 of the
Constitution does not recognize any limitations or restrictions on the
right to strike of the workers. She finds, therefore, that what may be
regulated are the conditions on the exercise of that right and the
procedures for holding a strike, as well as any abuses that might
occur in the course thereof. She is of the opinion, rather, that
Article 227 of the Labor Code, on which the resolution of the Ministry
of Labor is based, should be regarded as nullified by Articles 83 and
182 of the Constitution, and that the ruling, in omitting to
pronounce a decision in that respect, skirts the central argument of
the petitioners.[28]
(Emphasis added).

90.
The IACHR makes no value judgment on the issue of the strike’s
illegality or on the Constitution’s supremacy over inferior laws, such
as the Labor Code, inasmuch as the instant petition deals expressis
verbis with violations of due process and judicial guarantees.[29]
However, the Commission concurs with the position of Justice Ramos when
she states in fine that, “the
ruling, in omitting to pronounce a decision in that respect, skirts the
central argument of the petitioners.” The Commission
finds that the decision of the Supreme Court contained in Ruling Nº 44
had the effect of making it impossible for the customs workers to
receive an effective judicial remedy as provided by Article 25 of the
American Convention, to which Nicaragua became a State Party on
September 25, 1979.

C.Right to compensation (Article 10 of the Convention)

91.
Article 10 of the Convention provides, “Every person has the right to
be compensated in accordance with the law in the event he has been
sentenced by a final judgment through a miscarriage of justice.”

92.
The petitioners have alleged in the instant case that when the Supreme
Court of Justice set aside the petition for amparo, the
resolution of the labor authorities declaring the strike illegal
automatically became final. This caused the mass dismissals that
had taken place to be considered legal and in accordance to law, as well
as a large number of workers to be left unprotected. The
petitioners further hold that the Supreme Court was guilty of a grave
judicial error in basing its decision on events that pertain to a strike
held a year previously, that is, in February 1992, by the employees of
AERONICA, and not to the customs workers’ strike, which took place in
June 1993. Accordingly, since Ruling Nº 44 of the Supreme Court
constitutes an unjust judicial act, that tribunal committed a flagrant
breach of Articles 8 and 25 of the American Convention, which implies
that the customs workers should be compensated by virtue of Article 10
of the same international instrument.

93.
In this respect, the Commission finds that Ruling Nº 44 of the Supreme
Court of Justice on the petition for amparo, restricted the
rights of the petitioners but does not constitute a conviction based on
a miscarriage of justice under the terms of Article 10 of the American
Convention. In consequence, the Commission rejects the application
under Article 10 of the American Convention.

D.
Economic, social and cultural rights (Article 26 of the Convention)

94.
The American Convention provides for the protection of economic, social
and cultural rights through progressive development in the following
manner:

The
States Parties undertake to adopt measures, both internally and through
international cooperation, especially those of an economic and technical
nature, with a view to achieving progressively, by legislation or other
appropriate means, the full realization of the rights implicit in the
economic, social, educational, scientific, and cultural standards set
forth in the Charter of the Organization of American States as amended
by the Protocol of Buenos Aires.

95.
The Commission finds that the economic rights of the customs workers
fall within the framework of protection of the economic, social and
cultural rights shielded by the American Convention in Article 26.
The violations of the workers’ rights are plain in terms of the
principles of legality and retroactivity, and of protection of judicial
guarantees. The violations on the part of the State of Nicaragua
caused economic harm to, and infringed the social rights of, the
petitioners.

96.
The Commission wishes to recall that the American Declaration of the
Rights and Duties of Man provides that every person has the right to
work, leisure time and to social security, in the progressive sense of
rights. The Preamble to the American Convention provides: “Considering
that the Third Special Inter‑American Conference (Buenos Aires,
1967) approved the incorporation into the Charter of the Organization
itself of broader standards with respect to economic, social, and
educational rights and resolved that an inter‑American convention
on human rights should determine the structure, competence, and
procedure of the organs responsible for these matters.”

97.
It is for that reason that the American Convention says in Article 26,
under the chapter on “Progressive development,” that, “the States
Parties undertake to adopt measures, with a view to achieving
progressively, the full realization of the rights implicit in the
economic, social, educational, scientific, and cultural standards set
forth in the Charter of the Organization of American States.” It
should be emphasized that the Additional Protocol to the American
Convention on Human Rights in the Area of Economic, Social and Cultural
Rights was signed in San Salvador on November 17, 1988.

98.
The State of Nicaragua signed the Protocol of San Salvador on November
17, 1988 but has yet to ratify it. While it may be true that the
Protocol of San Salvador entered into force on November 16, 1999, the
main thing is that Nicaragua signed the Protocol in question in 1988, in
other words prior to the facts described in the instant petition.
In this case, the best doctrine on interpretation of the law of treaties
or of any provision on human rights considers that even though a treaty
may not be in force, the countries that signed it cannot impose rules
against it. Article 1 of the Protocol of San Salvador provides
that the measures adopted by the States Parties must be aimed at
achieving progressively and pursuant to their internal legislations, the
full observance of the rights recognized in said Protocol. This
means that the States Parties are not permitted to create laws or
interpret them in a manner that entails a retrogression in the rights
won by workers.

99.
Article 18 of the Vienna Convention on the Law of Treaties sets out the
“[o]bligation not to defeat the object and purpose of a treaty prior
to its entry into force. A State is obliged to refrain from acts which
would defeat the object and purpose of a treaty.”

100.
This position has been supported by the Inter-American Court in Advisory
Opinion OC-14/94, in which it refers “to the interpretation of
Articles 1 and 2 of the Convention, which set forth the obligation of
the States Parties to respect the rights and freedoms recognized therein
and to ensure their free and full exercise to all persons subject to
their jurisdiction, and to adopt, if necessary, such legislative or
other measures as may be necessary to give effect to those rights and
freedoms.” The Court adds that “if a state has undertaken to
adopt the measures mentioned above, there is even more reason for it to
refrain from adopting measures that conflict with the object and purpose
of the Convention.”[30]

101.
The Commission finds that in the instant case, the Nicaraguan State,
instead of adopting measures with the purpose of achieving the
progressive development of the customs workers, sought to curtail their
rights, thereby causing grave injury to their economic and social
rights.

E.
Right to freedom of association (Article 16 of the Convention)

102.
Article 16 of the American Convention protects the right to freedom of
association upon providing the following:

1.
Everyone has the right to associate
freely for ideological, religious, political, economic, labor, social,
cultural, sports, or other purposes.

2.
The exercise of this right shall be
subject only to such restrictions established by law as may be necessary
in a democratic society, in the interest of national security, public
safety or public order, or to protect public health or morals or the
rights and freedoms of others.

103.
The Inter-American Court has defined freedom of association as the right
of the individual to join with others in a voluntary and lasting way for
the common achievement of a legal goal.[31]

104.
In the instant case, the petitioners basically contend "that the
State of Nicaragua, in denying the possibility of the right to strike,
which is intrinsically associated with the right of association, and in
arbitrarily dismissing the unionized customs workers, has illegally
restricted the right to freedom of association, a situation made worse
by the discriminatory treatment endured by the unionized workers, who
were singled out in particular for dismissal, demonstrating a clear
violation of Article 16 of the American Convention".

105.
Indeed, the petitioners submit, “The State of Nicaragua, by refusing
to convene a board of reconciliation or to appoint a strike judge, which
are organs provided for in the Labor Code for declaring whether or not a
strike is legal, was preventing the customs workers the possibility of
resorting to strike action. Furthermore, the State of Nicaragua
persists in this violation with Ruling Nº 44-94 of the Supreme Court of
Justice, which expressly avoids pronouncing a decision on the
superiority of the constitutional provision that enshrines this right
over inferior laws. That attitude has the same effect as the attitude of
the government, in other words, to deprive the workers of their right to
strike... Furthermore, inasmuch as most of the workers dismissed
were union members, the right of association was denied.”

106.
The Commission finds that the right to unionize is a substantive labor
right, and that, regardless of any intrinsic link that the right to
freedom of association may have with the right to strike, it is not
sufficient to prove violation of the right of association of the customs
workers under the terms set forth in the Convention. The fact that
the State should have denied the possibility to go on strike did not
restrict the workers in exercising their right of association, given
that it was in their capacity as members of a union that they filed the
petition with the Supreme Court of Justice, which petition was admitted.

107.
The Commission has already said that by failing to pronounce a decision
with respect to the illegality of the strike or the supremacy of the
Constitution over inferior laws such as the Labor Code, the Supreme
Court skirted the central argument
of the petitioners and as a result made it impossible
for the customs workers to receive an effective judicial remedy as
provided by Article 25 of the American Convention. That, however, does
not constitute a violation of the customs workers’ right of
association.

108.
The Commission finds that in the instant case, there is a lack of
clarity in the petitioners’ allegations that, “inasmuch as most of
the workers dismissed were union members, the right of association was
denied,” since it does not emerge from the evidence contained in the
record that that they were prevented from exercising that right or that
they suffered persecution because they were members of a union.

109.
In consequence, the Commission concludes that it is not possible to
charge the State with responsibility for violation of the right to
freedom of association contained in Article 16 of the American
Convention.

V.
DEVELOPMENTS SINCE THE ADOPTION OF REPORT Nº 80/00

110.
On October 24, 2000, the Commission sent the State of Nicaragua its
Report Nº 80/00, adopted on October 4, 2000, during its 108th regular
session. It asked the State to provide information on the steps taken to
comply with the Commission’s recommendations and to resolve the
situation described in the complaint within no longer than two months
following the date of that communication. In addition, on that same date
the Commission informed the petitioners that it had adopted a
confidential report in accordance with Article 50 of the American
Convention.

111.
On March 7, 2001, after requesting two extensions, the State submitted
its comments; in them it refuted Report Nº 80/00 and offered the
following conclusions:

The
State of Nicaragua concludes by noting that it has at all times shown
a willingness to resolve this case, provided that the petitioners’
positions and claims were clarified sufficiently. However, since the
claims do not fit a clear juridical criterion that would allow a valid
claim to be made, there are no conditions given for establishing a
compromise between the parties, by means of the procedure requested.

Based
on the analysis and conclusions of this report, the State of Nicaragua
reiterates its willingness to resolve this case by proposing to pay
only the petitioners who did not withdraw their awards and agreeing to
maintain the value of their severance payments up to the present
moment.

In
light of all the above, considering that the applicable provisions of
law have been observed and upheld, and in the framework of its
commitment of respecting the rights and freedoms enshrined in the
American Convention on Human Rights, the State of Nicaragua
respectfully requests that the honorable Inter-American Commission on
Human Rights declare this case inadmissible and, consequently, duly
rule it closed.

VI.
CONCLUSIONS

112.
Based on the foregoing analysis, the Commission upholds the following
conclusions:

1.
Based on the facts that emerge from the record, the Commission finds
that in spite of the fact that the Office of the Military Judge Advocate
of the Sandinista Armed Forces convicted Carlos José Cerda Sánchez of
the crime of abuse of authority to the detriment of the workers
Cristóbal Ruiz Lazo, Ramón Roa Parajón, and Milton García Fajardo,
that measure only constitutes a partial admission, since the parties
responsible were not punished, nor were measures adopted to enable the
victims to receive compensation. The Commission finds that the
State violated the right to humane treatment contained in Article 5 of
the American Convention on Human Rights to the detriment of Milton
García Fajardo, Cristóbal Ruiz Lazo, Ramón Roa Parajón, Leonel
Arguello Luna, César Chavarría Vargas, Francisco Obregón García,
Aníbal Reyes Pérez, Mario Sánchez Paz, Frank Cortés, Arnoldo José
Cardoza, Leonardo Solis, René Varela, and Orlando Vilchez Florez.

2.
Furthermore, based on the acts and omissions examined, the Commission
concludes that the State of Nicaragua violated the rights of Milton
García Fajardo and the 141 workers named as co-petitioners in the
instant petition to a fair trial and to judicial protection, together
with their economic, social and cultural rights, protected by Articles
8, 25, and 26, of the above-cited international instrument, in
connection with the general obligation to respect and guarantee rights
set forth in Article 1(1) thereof.

3.
Finally, the Commission rejects the application with respect to the
right to compensation and to the right to freedom of association,
contained in Articles 10 and 16 of the American Convention. The
Commission wishes to point out that the fact that judicial error is not
shown does not mean that the judicial decision is not arbitrary.

VII.
RECOMMENDATIONS

113.
Based on the foregoing analysis and conclusions, from this report, the
Inter-American Commission on Human Rights reiterates the following
recommendations to the State of Nicaragua:

2.
To adopt the measures necessary to enable the
142 customs workers who
lodged this petition to receive
adequate and timely compensation for the violations of their human
rights established herein.

VIII.
PUBLICATION

114.
On April 4, 2001, the Commission adopted Report Nº 56/01, in accordance
with Article 51(1) and (2) of the Convention, and reiterated to the
State of Nicaragua the conclusions and recommendations contained
therein. The report was transmitted to the State on April 11, 2001, with
a one-month deadline for implementing its recommendations. The
Commission decided to transmit this report to the petitioners as well.
Neither the State nor the petitioners were authorized to make it public
until the Commission had adopted a decision in that regard.

115.
The State of Nicaragua replied on May 16, 2001, reiterating the position
set forth in its communication of March 7, 2001: that it would pay the
severance payments ordered for the 60 workers who had not previously
withdrawn them, index-linking the amounts to the US dollar. These
payments could be collected, on or after May 21, 2001, at the General
Directorate of Customs. The State also said that it had instructed the
Director of the Interior Ministry’s Civil Inspection Division to
conduct an additional investigation in order to comply with the IACHR’s
recommendations and bring this investigation to an effective conclusion.
The petitioners submitted their reply on July 6, 2001, indicating that
the State had not implemented the Commission’s recommendations.

116.
Report Nº 56/01 basically contains two recommendations for the State of
Nicaragua. The first of these refers to the complete, impartial,
and effective investigation under regular Nicaraguan criminal law
[emphasis added] to determine responsibility for the violations
established in this case, while the second deals with the reparations
owed to the victims. In consideration of this report’s content,
the Commission believes that the additional investigation to be
conducted by the Civil Inspection Division is solely administrative and
does not replace the judicial investigation. The National Police
Law states that only the courts of law referred to in Article 93 of the
Nicaraguan Constitution are competent to judge police officers.
Criminal action needs to be brought, and the judicial authorities will
be responsible for the proceedings. It therefore falls to the courts of
law and not to the National Police’s Civil Inspection Division to
conduct the investigation recommended by the IACHR. With respect
to the severance payments referred to by the State, it should be noted
that they were ordered by the courts in 1993 and, consequently, this
measure represents no form of compensation whatsoever.

117.
The information presented by the State of Nicaragua does not represent
any form of compensation or other measures intended to comply with the
recommendations made by the Inter-American Commission on Human Rights in
its Report Nº 56/01. In consideration of that, the Commission
makes no further statements regarding the information submitted by the
State.

118.
Based on the information supplied and in accordance with the terms of
Article 51(3) of the American Convention, the Commission decides to
reiterate the conclusions and recommendations contained, respectively,
in Chapters VI and VII above; to publish this report; and to include it
in its Annual Report to the General Assembly of the OAS. The Commission,
in accordance with the provisions contained in its governing
instruments, will continue to evaluate the steps taken by the State of
Nicaragua in connection with the aforesaid recommendations until they
have been fully complied by such State.

I
participate in announcing the decision of the Inter-American Commission
on Human Rights in Case 11.381, Milton García Fajardo and the 141
workers involved in this complaint against the State of Nicaragua, with
respect to the IACHR’s conclusions on the rights set forth in Articles
5, 8, 16, 25, and 26 of the American Convention on Human Rights, in
connection with the general obligation of respecting and ensuring those
rights enshrined in Article 1 of that international instrument.

I
dissent in part regarding the substantiation of the alleged violations
of Article 8 of the American Convention, in that the analysis of this
right does not rest on the miscarriage of justice that the petitioners
allege, which has been, in my opinion, duly proven. I also dissent from
the Commission’s analysis in failing to consider the right to receive
indemnification for a sentence based on a miscarriage of justice, as set
forth in Article 10 of the Convention. I therefore proceed to offer the
following comments:

Article
8(1) of the American Convention recognizes the right of all individuals
to a hearing, with due guarantees, in the substantiation of any
accusation of a criminal nature made against them. In this respect, the
Court has said that: “It does, however, provide for due guarantees;
consequently, the individual here [in labor matters] also has the right
to the fair hearing provided for in criminal cases.”[32]

Existing
doctrine defines miscarriages of justice in the following terms: “A
miscarriage exists when, through fraud, negligence, or mistaken
knowledge or understanding of the facts, a judicial ruling is issued
that does not reflect reality and that deserves to be called unfair.”
Also: “a miscarriage means a mistaken result that does not fit the
law, either because the laws were not applied correctly, or because
facts were established that do not correspond to reality.”[33]

A
judicial ruling must be a reasoned derivation from current law, as it
applies to the proven circumstances of the case. Otherwise it would be
an arbitrary judicial ruling, which can be defined as one that violates
or ignores what the law expressly provides in connection with the case,
one that ignores irrefutable evidence that has been brought to trial in
accordance with regular procedures, or one that refers to evidence not
contained in the case.[34]

In
the case at hand, Nicaragua’s Supreme Court of Justice committed a
serious miscarriage of justice in its ruling Nº 44/94 of June 2,
1994. In that ruling, the Supreme Court said its main reason for
dismissing the amparo suit was that “the strike should have
been pursued peacefully, with work being suspended and abandoned, since
all those actions of coercion and violence cannot be recognized by the
authorities.”

In
arguing that the strike had not been peaceful, the Supreme Court held
that:

In
the instant case, there were a series of events that were not a true and
proper abandoning of work activities, including the placement of
obstacles on the International Airport’s landing strip; this created
unpredictable and dangerous situations that this Court must consider
closely. Incidents like these endangered human lives and state property
... In conclusion, the Supreme Court is convinced that there was no
violation of the aforesaid constitutional principles and, as a result,
it must dismiss this suit.

Regrettably
the Supreme Court based its decision on facts other than those that
characterized the customs workers’ strike movement and, on that basis,
declared the amparo remedy inadmissible. In contrast, the
petitioners provided the IACHR with documentation proving that the
violent incidents invoked by the Supreme Court in its ruling Nº 44/94
occurred during a strike of AERONICA workers in February 1992, not the
customs workers’ strike of June 1993.

Moreover,
the violent acts described by the Supreme Court do not agree with the
State’s claims that the customs workers perpetrated violence and
vandalism during the strike. On the contrary, the complaints made
against the customs workers were resolved when the charges against them
were dismissed (see the paragraphs dealing with Article 5 of the
Convention in the IACHR’s report).

Article
8(1) of the Convention establishes that “every person has the right to
a hearing, with due guarantees”; consequently, the judge was obliged
to give his ruling based on the evidence placed in the case file by the
parties and not on personal motivations or knowledge unrelated to the
case, which would constitute a clear example of judicial arbitrariness.
Ruling Nº 44/94 is based on elements not claimed or proven at trial; it
is therefore clearly an arbitrary decision and represents a violation of
the right to a fair trial in that it is based on a miscarriage of
justice.

Since
the Supreme Court’s Ruling Nº 44/94 is, for the reasons given above,
an act of judicial arbitrariness for which there are no grounds, the
country’s top court of law committed a flagrant breach of Article 8 of
the American Convention, and the terms of its Article 10 should be
applied. This means indemnifying the customs workers for the violation
of their right to a fair trial caused by a miscarriage of justice and
providing due compensation for the harm inflicted on the victims.

The
obligation of providing compensation has been established by the
Inter-American Court in most cases, under the terms of Article 63(1) of
the Convention:

If
the Court finds that there has been a violation of a right or freedom
protected by this Convention, the Court shall rule that the injured
party be ensured the enjoyment of his right or freedom that was
violated. It shall also rule, if appropriate, that the consequences of
the measure or situation that constituted the breach of such right or
freedom be remedied and that fair compensation be paid to the injured
party.

In
this article the Convention codifies an important rule of customary law
that is one of the fundamental principles of current international law
governing the responsibilities of States.[35]
In connection with this, the Inter-American Court has ruled that when a
wrongful act occurs that is imputable to a State, it issues
international responsibility by the State for violation of an
international rule, and thus incurs a duty to make reparation.[36]
Similarly, the court has referred to the scope of reparations in the
following terms: “Reparations is a generic term that covers all of the
various ways a State can redress the international responsibility it has
incurred (restitutio in integrum, indemnization, satisfaction,
assurances of guarantees that the violations will not be repeated, and
others).”[37]

In
light of all the above points, I believe that by committing a
miscarriage of justice, the State of Nicaragua has violated the American
Convention and is obliged to provide reparations for the harm inflicted
on the victims of this illicit act, pursuant to Article 10 of the
American Convention.

[3]
On May 26, 1993, the customs service workers went on strike after trying
unsuccessfully to negotiate a series of demands with the Ministry of
Labor. The Ministry of Labor, on May 27, 1993, declared that the
workers' strike was illegal, claiming that Article 227 of the Labor Code
did not extend the right to strike to public or social service workers.

[8]
Record 400/93, Judgment 171, Page 273, Fifth Local Court for Criminal
Matters in and for Managua, August 26, 1993; in which the court acquits
the customs workers of the crime of injury with intent of three police
officers: Antonio Martínez, Alvaro Valle Mendoza and Oscar Membreño
Escobar. Documents received by means of a communication of January 18,
1996. See File Nº 2, Sep.16.

[14]
In a communication of October 6, 1997, the petitioners adduced the
following evidence: 1) Record 400/93, Judgment 171, Page 273, Fifth
Local Court for Criminal Matters in and for Managua, August 26, 1993, in
which the court acquits the customs workers of the crime of causing
injury with intent to three police officers; 2) Record of the Judgment
of the Criminal Chamber of the Court of Appeals of the Fourth Region, of
March 2, 1994, in which the court decided to annul the proceedings
against the defendants, who were workers, and to acquit the other
workers, who were arbitrarily prosecuted; 3) Letter from the Interior
Ministry, National Police of Nueva Segovia, which
certifies that the workers took part in a sit-down strike in which there
were no acts of violence; 4) Certificate from the Interior
Ministry, National Police of Somotillo, which shows that the 22 customs
workers do not have criminal records for the offenses of taking part in
strikes and protests. Communication of October 6, 1997. File 4,
Sep. 30.

[18]Article 31 of the Amparo Law, published in the Official
Gazette, No. 241, December 20, 1988, provides the following:

Article
31: When the petition for amparo is duly filed with the
court, it shall be made known to the Office of the Attorney General of
Justice, accompanied by a copy of the petition. Within a term of three
days, the court shall decree, de oficio or at the request of
party, suspension of the act against which a claim has been made or
denial thereof, as appropriate.

[20]
Inter-American Court of Human Rights, Judicial Guarantees in
States of Emergency (arts. 27.2, 25
and 8 of the American Convention on Human Rights), Advisory Opinion
OC-9/87 of October 6, 1987, Series A, Nº 9, para. 24.

[21]
According to Article 45 of the Amparo Law, "The judgment
shall be reasoned; the act or acts against which the claim is filed
shall be clearly established; and the legal grounds shall be stated for
the decision on the legality of the act against which the claim is
filed, together with the analysis of those grounds, which shall mention
clearly and precisely the act or acts on which basis amparo is
granted or denied."

[29]
In Report Nº 14/97 on the admissibility of Case 11.381, the IACHR, in
the section “Proceedings with the Commission,” says the following: In
their observations (of January 23, 1996), the claimants contend: “...that
the primary objective of the petition in this case is to make the State
of Nicaragua responsible, since one of its agencies, the Supreme Court
of Justice, has acted irregularly and caused damages to the workers by
performing the function of the court in the name of the State." For
this reason, the petitioners reject the argument of the State that this
a matter pending under another international agency and they reiterate
that the contents of the petition formulated to the ILO deal with the
violation of labor rights which occurred prior to issue of ruling No.
44. As a result, the petition filed with the Inter-American Commission,
as they have been explaining in their many letters, deals with the error
contained in the aforementioned ruling.”OEA/Ser.L/V/II.95,
doc. 7 rev. of March 14, 1997, para.. 27, pp. 638-653.

[30]
Inter-Am.Ct.H.R., Advisory Opinion OC-14/94 of December 9, 1994, International
Responsibility for the Promulgation and Enforcement of Laws in Violation
of the Convention (Arts. 1 and 2 of the American Convention on Human
Rights), (Ser. A) No. 14 (1994) paras. 32 and 33.

[31]Inter-American Human Rights Court, Advisory Opinion OC-5/85 of
November 13, 1985, Compulsory Membership in an Association Prescribed
by Law for the Practice of Journalism (Arts. 13 and 29 of the
American Convention on Human Rights), of December 9, 1994, paras. 32 and
33.